Final verdict for Oracle and Google due in Java copyright battle

"Can somebody use another company's property just because it
suits them?"

That's the question posed by Oracle
lawyer Mike Jacobs during the closing arguments in the "copyright phase" of the ongoing court
battle between Oracle and Google over
the use of the Java programming language
on the Android mobile operating system.
Oracle is trying to show that Google violated Oracle's copyrights
when it built a new version of the Java platform atop Android, and
in court, Jacobs sought to drive home Oracle's case by tossing this
rhetorical question at a California jury.

But with his closing argument, Google counsel Robert Van Nest
insisted that the search giant was well within its rights in
building its own version of Java, claiming "fair use" of Oracle's copyrights.
"Everything in Android is original," Van Nest said.

In 2010, Oracle acquired the Java platform when it bought Sun
Microsystems, and it promptly sued Google, claiming copyright
and patent infringement. After a year and a half of pre-trial
bickering, the case finally came to court on 16 April, and saw
testimony from such big names as Oracle CEO Larry Ellison, Google boss Larry
Page, Android godfather Andy Rubin, and two ex-Sun CEOs: Jonathan
Schwartz and Scott McNealy.

The case could go a long way toward deciding whether a company
can copyright an application programming interface, or API -- which
is essentially a way of talking to a piece of software. Oracle
claims that Google violated its copyrights by mimicking 37 Java APIs -- though it also claims that
Google actually lifted nine lines of software code from the Java
platform in building Android.

As he gave his final instructions to the jury, Judge William
Alsup once again defined the boundaries of the case, saying that copyright
protects the "expression of ideas" but not a procedures, processes,
systems, methods of operation, concepts, principles, or
discoveries. For the purposes of this case, he said, Oracle's
copyrights cover the "structure, sequence, and organisation" of the
actual software code that underpins the Java platform.

On the jury verdict form, the first question reads: "As to the
compilable code for the 37 Java API packages in question taken as a
group: Has Oracle proven that Google has infringed the overall
structure, sequence and organisation of copyrighted works?" With
its closing argument, Oracle attempted to show that Google had
violated its copyrights by knowingly copying both software code and
documentation for that code.

Oracle's Jacobs told the 12 jurors that the core question of the
trial was "pretty basic," and he reviewed the testimony of expert
witness John Mitchell, a computer science professor at Stanford
University, who said that there was no way that Google could have
created Android without directly copying code and documentation
from Oracle. Because of this, Jacobs said, a "clean room
implementation" -- in which programmers build code from scratch --
was not possible.

Google has tried to establish that although some of its
engineers may have had prior knowledge of the code used by the Java
platform, they built Davlik independently of this knowledge. But
Jacobs disagreed. "The clean room was not clean. The clean room was
very dirty," he said, claiming that 400 classes, 45 methods, and
700 declarations covering about 11,000 pages of code amounted to
"property taken by Google."

In order to prove fair use, Google had to show that Android is
"transformative" -- meaning it's very different from the work its
derived from -- or that it's not used for profit. But Oracle's
Jacobs said that neither applied. He said that Android was just the
Java APIs on smartphones, and he said that although Android was
free to download, Google makes a great deal of money off the
product through other channels, such as advertising.

Jacobs then moved on to myriad e-mails showing that -- after
failed negotiations between Sun and Google over a possible
partnership around Android and Java -- Google was aware that it
would upset Sun in building its own version of Java and that it
would "fragment" the Java platform. He argued that you can't copy
APIs simply because coders are familiar with the status quo and
would not want to learn new ones.

With its case, Oracle is also trying to show that even as it
copied the Java platform, Google was knowingly building a platform
that would undermine the platform. The Java platform was designed
to run the same applications on many different devices -- "write
once, run anywhere" is the tag line -- but Jacobs argued that in
building its own version, Google disrupted this effort -- and that
it knew this would make a lot of people unhappy. Jacobs did not
explain, however, how this sort of behaviour violates the law.

While Judge Alsup made it very clear that neither side was
allowed to discuss the amount of money Oracle is demanding from
Google, Jacobs said that Android is officially activated on 750,000
devices a day "without any acknowledgement from Google that that is
Oracle's property".

During his testimony last week, former Sun CEO Jonathan Schwartz
said that Google had done nothing wrong in building its own version
of Java, and Google pointed to a blog post Schwartz published at
the time praising Google's use of Java. But on Monday, Jacobs
argued that Schwartz was not qualified to judge the legal
ramifications of Google's actions. "A blog post is not permission,"
he said. "A blog post is not a license."

During its closing argument, Google disagreed, saying that
Schwartz very much undermined Oracle's arguments. "[Schwartz] chose
to put Sun's support behind Android and went public about it," said
Google counsel Robert Van Nest. "He said under oath that [Sun]
didn't have grounds to sue." Van Nest also pointed out that
Schwartz asked Google about how Sun could use Android. "If that's
not an endorsement," Van Nest said. "I don't know what is."

Van Nest reiterated that Google had done nothing wrong in
building its own version of Java because it only needed a license
for the Java name and brand. Even still, he argued, the codebases
for Android and the Java platform were drastically different.
"[Oracle] scoured Android up and down and found nine lines of code
out of 15 million," Van Nest said. "So don't talk to me about a
dirty clean room."

Van Nest dismissed the idea that Google had copied the actual
code and documentation. Oracle, he said, must show that someone
intended to copy the code. Van Nest said that Oracle had not copied
the "structure, sequence and organisation" of the Java platform
code. He said that Oracle was only challenging the "system of
organisation," and this point got him so excited that he hopped up
on one foot. He argued that Google's use of Java was akin to using
the same labels that Oracle uses on the outside of a filing cabinet
-- but not the same files and folders used on the inside. Android,
he said, "transformed the use of Java for a smartphone stack".

During the trial, Oracle has tried to show how much work is
needed to build APIs. Van Nest did not disagree. But he said that
Oracle had stretched the definition of a work of art by saying that
APIs were akin to a symphony or a book. "They're functional," he
argued, saying that an API simply takes and processes code.

Van Nest also attacked Oracle's complaint that Android has
fragmented the Java platform. "You haven't heard a single developer
come in and say, 'Gee, I'm unhappy about Java because Android
fragmented it,'" he said to the jury. He then presented a number of
slides and emails that ostensibly show that Sun fragmented Java
itself. "And they recognised it," he said.

After each side's closing argument, the jury began
deliberations. But as of 30 April, they had not yet reached a
verdict. They will resume deliberations shortly. Once the verdict
is handed down -- regardless of whether Google is found guilty or
not -- the trial will move into its "patent phase," where each side
will argue over whether Google violated two Oracle patents in building Android. If Google is found
guilty in either of these two phases, there will be a "damages
phase," where the jury will decide whether Google must pay Oracle
for its use of Java.

When the court proceedings concluded at the end of day, the
tension between the two sides dissipated -- at least temporarily.
Lawyers from both sides shook hands and engaged in what appeared to
be friendly conversation. But the battle will resume on
Tuesday.